Swanson v. Clark

The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge

ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

On August 28, 2009, Erik James Swanson ("petitioner") filed this federal habeas petition. On October 5, 2009, the magistrate judge recommended that the petition be dismissed without prejudice because petitioner has not fully exhausted his state remedies. See 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)(holding that "mixed" petitions that include both exhausted and unexhausted grounds must be dismissed).

On October 19, 2009, in lieu of objections, petitioner filed a motion seeking dismissal of this matter so that he might return to the California Supreme Court to exhaust his state remedies.

Accordingly, IT IS ORDERED THAT:

1. The report and recommendation is accepted.

2. Petitioner's motion is granted.

3. Judgment shall be entered consistent with this order.

4. The clerk shall serve this order and the judgment on all counsel or parties of record.

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